1. KHAWAJA MUHAMMAD SHARIF, C. J.---This is an appeal against the order of the District Judge, Muzaffarabad dated 13-4-1971 by which the plaintiff's suit was dismissed for not depositing into Court the decretal amount within the specified time.
2. The facts giving rise to this appeal are that Yaqoob Khan brought a suit, to pre-empt the sale acquired by Saif A.I Khan, in the Court of the Additional Sub-Judge, Muzaffarabad on 24-3-1964.
3. The learned Additional Sub-Judge by his judgment dated 6-2-1970 dismissed the plaintiff's suit.
4. The plaintiff then, went up in appeal before the District Judge who by his judgment and decree dated 24-6-1970 accepted the appeal and decreed the plaintiff's pre-emption suit conditional on payment of Rs. 2,200 with proportionate cost of the registration of the sale deed, on or before the 31st July 1970, failing which his suit was to stand dismissed with costs. The vendee filed an appeal in the High Court against the judgment and decree of the District Judge before 31-7-1970. The High Court dismissed the vendee's appeal on 5-4-1971. Then the vendee made an application to the learned District Judge on 12-4-1971 showing that the plaintiff-pre-emptor --decree-holder had failed to deposit the decretal amount in the Court by the due date, 31-7-1970 and prayed that the plaintiff's suit should be dismissed with costs. The learned District Judge by his order dated 13-4- 1971 dismissed the plaintiff's suit and appeal for non-compliance with the conditional decree since he had failed to deposit the decretal amount by the due date, 31-7-1970. It is against this order that the plaintiff has come up in appeal before this Court.
5. Learned counsel for the plaintiff-appellant argued that the plaintiff should not have been penalises for his failure to deposit the decretal amount by the due date since the vendee before that date filed an appeal in the High Court and the whole case had been reopened. He cited PLD 1965 SC 1 and PLD 1966 Lab. 414 in support of his contention. It is laid dawn in head--note 'C' at page 4 of the Supreme Court Judgment, PLD 1965 SC 1 that :- "On the filing of an appeal the entire matter becomes re-opened and sub judice and has to be decided 3n accordance with the law prevailing."
6. We do not dispute the broad proposition of law laid down in this judicial authority. It is another matter whether the filing of an appeal in a pre-emption case automatically extends the time for the payment of the decretal amount by the pre-emptor. It was laid down by Waheeduddin Ahmad, J. In PLD 1966 Lah. 414 that :-- "In a suit for pre-emption it is contrary to sound principles to compel the plaintiff to pay the amount decreed by the trial Court and to subject him to the penalty of losing the right of pre-emption if he fails to do so, when he has a right to question the correctness of the amount made payable by the trial Court by means of an appeal against it."
7. Learned counsel for the vendee-respondent cited 19 I C 347, I L R 35 All. 582 which was not produced before us but has been discussed in the other rulings cited by the learned counsel, I L R 6 Lah. 316, AIR 1925 Lah. 91 and PLD 1963 Azad J & K 15. It was laid down in 19 I C 347 that :- "A Court cannot extend the time granted by a pre-emption decree for the payment of the purchase-money after the time fixed by the decree has expired.
8. A right, extinguished by virtue of a decree of a competent Court binding on the parties, cannot be revised by any subsequent act of the Court or the party at fault."
9. It was laid down in I L R 6 Lah. 316 that where in a pre---emption case the suit was decreed by the first Court but the decree was set aside in appeal and was restored by the High Court in second appeal without extending period for payment of price, the Execution Court cannot interpret the High Court decree as extending time for payment. The facts of the case were that on 22nd March 1916 the trial Court passed a decree for pre-emption on payment of Rs. 1,200 by the 22nd May 1916.
10. The District Judge on appeal dismissed the claim, but the High Court in second appeal restored the decree of the trial Court on 2nd February 1920. On 26th February the decree-holder deposited Rs 1,200 and asked for possession. The judgment-debtor then objected that the money had not been paid within the time fixed by the trial Court. This objection was disallowed by the first Court. On appeal to the lower appellate Court, the judgment of the lower Court was upheld. The vendee- judgment-debtor then went up in appeal to the High Court. It was held by the High Court, that the decree-holder was not entitled to possession of the property, the pre-emption price not having been deposited on the date fixed by the trial Court, and that the Execution Court could not interpret the decree of the High Court as extending the time for deposit as that would amount to a variation of the decree of the High Court. The result was that the appeal succeeded and the objections of the judgment--debtor were allowed and the decree-holder who had deposited the decretal amount beyond time fixed by the trial Court was not given the possession of the land. The facts of the case in AIR 1925 Lah. 91 were that in a pre-emption suit a compromise decree was passed. It was provided that on plaintiff's failure to pay to the vendee certain sum by a certain date his suit must be dismissed. Within the time specified, the sum named in the decreo was paid by the plaintiff and the property was taken possession of by him. Afterwards it was discovered by the defendant that the plaintiff's deposit in Court was less than the sum mentioned in the compromise decree by four annas. The defendant then applied for restoration of the pre-empted property to him and dismissal of the plaintiff's suit. It was held that :- "It was not within the competency of the Court to extend the time specified in the decree for payment of the amount, that in this respect there was no distinction between a compromise decree and a decree passed after contest and that the plaintiff not having strictly complied with the decree, his suit must be dismissed and the defendant restored to the possession of the pre- empted property."
11. Order XLI, rule 5, C. P. C. Provides that :- "An appeal shall not operate as stay of proceedings under s decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree ; but the Appellate Court may for sufficient cause order stay of execution of such decree."
12. The plaintiff's suit was decreed by the appellate Court on 24-6-1970 conditional on payment of Rs.
13. 2,200 together with proportionate cost of registration of the sale deed by 31-7-1970. The plaintiff- decree-holder could deposit the decretal amount by 31-7-1970 into the Court and take out execution proceedings for possession of the suit land. There was nothing to stop him from doing so.
14. The fact that the vendee in the meanwhile filed an appeal in the High Court, did not prevent the decree-holder from depositing the decretal amount into the Court and taking out execution proceedings for possession of the suit land unless the High Court issued a stay order. Order XX, rule 14, C. P. C. Provides that:- "Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court the decree shall-
(a) specify a day on or before which the purchase-money shall be so paid, and
(b) direct that on payment into Court of such purchase---money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs."
15. According to the terms of the decree the plaintiff's suit stood dismissed on 31-7-1970. The vendee's appeal was dismissed by us by judgment and decree dated 5-4-1971. We constituted the D. H. That dismissed the vendee's appeal and we have looked -into our judgment dated 5-4-1971. This judgment is silent as to the time by which the pre-emption money was to be paid into the Court. C.
16. L. Anand who revised Sir Shadi Lal's Commentary on the Law of Pre-emption in the Punjab writes under section 28 of the Punjab Pre-emption Act quoting 48 P R 1916 that :- "An appellate Court, when deciding an appeal by a defen--dant-vendee from a decree for pre- emption and dismissing the appeal, is not bound to fix a period subsequent to the date of its own decree within which the price fixed by the Court of first instance is to be paid. If the decree of the appellate Court dismissing the appeal is silent as to the time for the payment .Of the pre-emption money, it must be construed to have confirmed the provision fixing the date or time for payment, and in such case, the time must be calculated from the date of the original and not of the appellate decree."
17. The lower appellate Court had decreed the plaintiff's claim and had fixed 31-7-1970 as the date by which the pre-emptor decree-- holder was to pay the pre-emption money. The High Court did not extend the time fixed by the lower appellate Court when deciding the vendee's appeal. Therefore, it shall be taken that the High Court had confirmed the date, 31-7-1970 by which the pre-emption money was to be paid into the Court by the plaintiff --pre-emptor. The plaintiff-pre-emptor failed to pay in the pre---emption money by the due date. His suit was rightly decided by the lower appellate Court to have been dismissed.
18. There is no force in this appeal which is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.